Davor Jancic The barroso initiative: window dressing or democracy boost? Article (Published version) (Refereed) Original citation: Jancic, Davor (2012) The barroso initiative: window dressing or democracy boost? Utrecht Law Review, 8 (1). pp. 78-91. ISSN 1871-515X © 2012 The Author This version available at: http://eprints.lse.ac.uk/51580/ Available in LSE Research Online: August 2013 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This article is published in a peer-reviewed section of the Utrecht Law Review The Barroso Initiative: Window Dressing or Democracy Boost? Davor Jančić* 1. Introduction: refurbishing EU parliamentary democracy Although historically five years is a negligible period of time, in European integration it can spark impor- tant developments. Such is the case with the so-called Barroso Initiative (the Initiative), named after João Manuel Durão Barroso, incumbent second-term President of the European Commission. The purpose of his Initiative is to reinforce the democratic basis of the Union by involving national parliaments of the Member States more closely in the EU policy-making processes beyond the texts of the founding treaties. This development is partially inspired by age-old appraisals that the Union is democratically de- ficient, because it does not live up to the standards of parliamentary democracy of its Member States. The EU is allegedly not as democratically legitimate as the states that created it.1 As Sieberson has as- sessed, however, the Lisbon Treaty offers more opportunity than before for public input. The European Parliament becomes ‘a full co-legislator and full participant in the budgetary process’, national parlia- ments play a significant but predominantly consultative role in the pre-legislative phase,2 and the EU citizenry profits from the citizens’ initiative and better information about Council negotiations. Yet, the democratic deficit persists.3 While the assertion of a democratic deficit is certainly a matter of the criteria used,4 these voices have been loud enough to exert a reaction by the Commission, whose powers of legislative initiative and implementation place it at the forefront of the EU executive branch. A hand of cooperation was extended * Postdoctoral Fellow, Institute of Constitutional and Administrative Law, Utrecht University School of Law, Utrecht (the Netherlands) and Visiting Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg (Germany). E-mail: [email protected]. 1 See for instance: D. Chryssochoou et al., ‘European Democracy, Parliamentary Decline and the “Democratic Deficit” of the European Un- ion’, 1998 Journal of Legislative Studies4, no. 3, pp. 109-129; R. Kuper, ‘The Many Democratic Deficits of the European Union’, in A.Weale & M. Nentwich (eds.), Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship, 1998, pp. 143-158; A. Follesdal & S. Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’, 2006Journal of Common Market Studies 44, no. 3, pp. 533–562. See contra: A. Moravcsik, ‘In Defence of the “Democratic deficit”: Reassessing Legitimacy in the European Union’, 2002 Journal of Common Market Studies 40, no. 4, pp. 603-624. 2 See useful overviews in: M. Wyrzykowski et al., ‘General Report: The Role of National Parliaments in the European Union’, in G.C.R. ­Iglesias & L.O. Blanco (eds.), The Role of National Parliaments in the European Union: Proceedings of the FIDE XXIV Congress Madrid 2010 – Vol. ,1 2010, pp. 1-78; M. Gennart, ‘Les Parlements Nationaux dans le Traité de Lisbonne: Évolution ou Révolution’, 2010 Cahiers de Droit Euro- péen 46, no. 1-2, pp. 17-46; G. Barrett, ‘“The King is Dead, Long Live the King”: The Recasting by the Treaty of Lisbon of the Provisions of the Constitutional Treaty Concerning National Parliaments’, 2008European Law Review 33, no. 1, pp. 66-84; A. Delcamp, ‘Les Parlements Nationaux et l’Union Européenne: De la Reconnaissance à l’Engagement’, 2011 Revue du Marché Commun et de l’Union Européenne, no. 544, pp. 7-12. 3 S.C. Sieberson, ‘The Treaty of Lisbon and Its Impact on the European Union’s Democratic Deficit’, 2008Columbia Journal of European Law 14, no. 3, pp. 463-464. 4 G. Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’, 1998European Law Journal 4, no. 1, pp. 5-28. http://www.utrechtlawreview.org | Volume 8, Issue 1 (January) 2012 | URN:NBN:NL:UI:10-1-101430 | 78 Davor Jančić to national parliaments.5 The Barroso Initiative therefore represents a move towards mitigating the per- sisting democratic deficit in the Union. This article carries out an in-depth analysis of the Barroso Initiative from a juridico-political point of view. The objective is to shed light on its nature, meaning and implications for national parliaments. To this end, we first describe how and why it came into being, what it is and how it operates. Thereafter, we make a sweeping comparison across the Member States in order to provide a broad overview of the most typical features of national parliamentary participation in this Initiative. On that basis, we turn to a more detailed examination of the activities of the French, British and Portuguese parliaments within it in order to show the different constitutional consequences that the Initiative can have for domestic parliamentary bodies. 2. Origins of the Barroso Initiative The Barroso Initiative can be traced back to 2001 when the Commission set out to reform EU govern- ance. In its preparatory report for the White Paper on European Governance, the Commission inter alia sought to make national parliaments – together with the European Parliament, the Committee of the Regions, and the Economic and Social Committee – ‘the architects of public debates on European mat- ters’.6 This initial enthusiasm, likened by an author toperestroika and glasnost of President Gorbachev of the Soviet Union,7 dissipated into thin air with the White Paper itself, since it did not make much pro- gress in integrating national parliaments under the Union’s aegis.8 It was in February 2005 that the Commission adopted what it called a ‘national parliaments ap- proach’. It conceded that it could not remain indifferent to the representation of national assemblies in Brussels and that it could not afford not to exchange views with national parliaments during the period of reflection on the Constitutional Treaty. Neither could it ignore the evolving national systems of ex ante parliamentary scrutiny. The Commission did however declare allegiance to two principles: (a) the institutional balance, meaning that its primary discussion partners are the European Parliament and the Council; and (b) respect for the constitutional diversity of the Member States. The objectives laid down in a ten-point plan by Margot Wallström, the then Vice-President of the Commission, included visits to national parliaments, participation in COSAC and the Conference of Speakers of the EU Parliaments, and a more technical support for national parliaments.9 In May 2006, the Commission, presided over by José Barroso, announced its wish to transmit all new proposals and consultation papers, such as Green and White Papers, directly to national parliaments and invited them to react with a view to improving the processes of policy formulation and their imple- mentation.10 This is the first time the Barroso Initiative appeared in an official EU document. The wish was endorsed at the European Council meeting in June 2006: ‘The European Council notes the interdependence of the European and national legislative pro- cesses. It therefore welcomes the Commission’s commitment to make all new proposals and 5 However, there is no consensus in the literature that the direct participation of national parliaments in EU processes is a positive course of action. See for instance: Y. Devuyst, ‘The European Union’s Institutional Balance after the Treaty of Lisbon: Community Method and Democratic Deficit Reassessed’, 2008 Georgetown Journal of International Law 39, no. 2, pp. 311-315; P. Kiiver, National Parliaments in the European Union: A Critical View on EU Constitution-Building, 2006. 6 European Commission, ‘European Governance: Preparatory Work for the White Paper’, 2002, p. 31. 7 A. Cygan, ‘The White Paper on European Governance – Have Glasnost and Perestroika Finally Arrived to the European Union?’, 2002 Modern Law Review 65, no. 2, p. 230. 8 European Commission, ‘European Governance: A White Paper’, COM(2001) 428. The White Paper did recommend that ‘[d]emocratic institutions and the representatives of the people, at both national and European levels, can and must try to connect Europe with its citi- zens’ (p. 3), that ‘the involvement of national parliaments and their specialised European affairs committees, as already practiced by the European Parliament, could also be encouraged’ (p. 17), and that ‘[t]he European Parliament and all national parliaments of the Union and the applicant countries should become more active in stimulating a public debate on the future of Europe and its policies’ (p. 30). This last recommendation became an action point. See more in: A. Follesdal, ‘The Political Theory of the White Paper on Governance: Hidden and Fascinating’, 2003 European Public Law 9, no. 1, pp. 73-86; C. Scott, ‘The Governance of the European Union: The Potential for Multi-Level Control’, 2002European Law Journal 8, no.